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Lim v Lim

Lim v Lim

Case [2022] NSWSC 454 14 April 2022

Contested Probate

Testamentary Capacity

Knowledge and Approval

Suspicious Circumstances

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lim v Lim [2022] NSWSC 454
Hearing dates: 8-10 February 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [463]

Catchwords:
SUCCESSION — Contested probate – Elderly will-maker – Validity of last Will of the deceased – The Plaintiff, a son of the deceased and a major beneficiary named in a number of earlier duly executed Wills of the deceased, propounds penultimate Will made in 2011 – Last Will of the deceased made in 2019 leaves estate to be shared equally between four of the five children of the deceased – Grant of Probate in common form of the 2019 Will sought to be revoked sought by Plaintiff – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances, alleged by the Plaintiff at the time the deceased made the 2019 Will – Whether the Defendant/Cross-Claimant, as the propounder of the 2019 Will, has established testamentary capacity and knowledge and approval and removed residual doubts – No dispute about validity of the 2011 Will by the deceased – Agreement of the parties that if the grant of Probate of the 2019 Will is revoked, Probate in solemn form of the 2011 Will, should be granted. Parties able to agree on how costs of the proceedings should be borne whatever the result of the proceedings

Legislation Cited:
Births Deaths and Marriages Registration Act 1995 (NSW), s 49(2)
Evidence Act 1995 (NSW), s 140(2)
Probate and Administration Act 1898 (NSW), ss 33, 66
Succession Act 2006 (NSW), s 6
Uniform Civil Procedure Rules 2005 (NSW), rr 31.18, 14.4

Cases Cited:
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Banks v Goodfellow (1870) LR 5 QB 549
Bates v Messner (1967) 67 SR (NSW) 187
BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189
BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351
Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583
Bool v Bool [1941] St R Qd 26
Bramston v Morris; Estate of Murray; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Supreme Court (NSW), Powell J, 20 August 1993, unrep)
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Brown v Wade [2010] WASC 367
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751
Chisak v Presot [2021] NSWSC 597
Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82
Choy Po Chun v Au Wing Lun [2018] HKCA 403
Croft v Sanders [2019] NSWCA 303
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Estate Cockell; Cole v Paisley [2016] NSWSC 349
Estate Kouvakas; Lucas…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lim v Lim

Details

AGLC: Lim v Lim [2022] NSWSC 454
Case: [2022] NSWSC 454
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the case of Lim v Lim, the plaintiff, a son of the deceased, contested the validity of the deceased's last will, which was made in 2019. The plaintiff sought a revocation of the grant of probate in common form of the 2019 will and argued that the deceased lacked testamentary capacity, knowledge and approval, and that the will was executed under suspicious circumstances. The defendant, the propounder of the 2019 will, sought to establish the validity of the will. The court had to decide whether the deceased had the testamentary capacity, knowledge and approval of the will at the time it was executed.

The court examined the evidence presented by both parties and considered the medical reports and testimony of witnesses. The court found that the deceased had the testamentary capacity, knowledge and approval of the will at the time it was executed. The court also found that the will was not executed under suspicious circumstances. The court concluded that the defendant had established the validity of the will and that the plaintiff's claims were without merit.

As a result of the court's decision, the grant of probate in common form of the 2019 will was not revoked, and the estate was to be distributed according to the terms of the will. The parties were able to agree on how the costs of the proceedings would be borne, regardless of the outcome of the proceedings.

In conclusion, the court found that the defendant had established the validity of the deceased's last will, and the plaintiff's claims were dismissed. The costs of the proceedings were to be borne by the parties as agreed.

Orders